Despite Roe v. Wade, the courts have upheld many laws that mark conception as life’s clear beginning.
Democratic presidential candidate Pete Buttigieg campaigns in Newton, Iowa, Sept. 21.
Democratic presidential candidate Pete Buttigieg appeals to Scripture to defend his opposition to restrictions on abortion. “There’s a lot of parts of the Bible that talk about how life begins with breath,” he told a radio audience Sept. 5, adding that no matter what anyone thinks about “the kind of cosmic question of where life begins,” it ought to be up to “the woman making the decision.”
Mr. Buttigieg’s words evoke rulings by the Supreme Court, which has upheld a sweeping right to abortion since Roe v. Wade in 1973, based on the supposed inexactness of when life begins. Yet with regard to issues other than abortion, many states have passed laws that define life as beginning at conception and treat unborn children as human persons. The Supreme Court has allowed such laws to coexist with Roe, creating a legal landscape in which arguments against restricting abortion look increasingly tenuous.
A gap opened between how the courts treat abortion and other life issues because Roe didn’t address the other contexts in which unborn children can be killed. What about medical negligence? What about the bank robber who fires a gun, strikes a pregnant woman, and kills her child? What about the estranged boyfriend who batters his pregnant girlfriend and kills her child?
Why didn’t the Supreme Court address those scenarios in 1973? In writing “Abuse of Discretion: The Inside Story of Roe v. Wade” (2013), I interviewed a former Supreme Court clerk who is well versed in the legal history. At the time of the case he discussed existing legal protections for unborn children with Justice William Brennan. Asked about the other controversial scenarios, Brennan replied, “We’ll deal with those in the next case.”
The next case never came. In fact, the justices have refused all such cases since 1973. Consequently, for nearly half a century the court has allowed states and lower courts to build on centuries of Anglo-American legal protection for unborn children.
Mr. Buttigieg’s religious musings obscure that America’s legal tradition—going back to the English common law—has long protected unborn children to the greatest extent possible given existing medical understanding. As Justice James Wilson noted in the 1790s, “With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction but from every degree of actual violence, and, in some cases, from every degree of danger.”
Rulings from as long ago as the 17th century show that English common law prohibited abortion at the earliest point that medicine could detect that a developing human was alive (the stethoscope wasn’t invented until 1816). English and American law subsequently prohibited abortion at earlier points during pregnancy, as medical understanding and technology allowed.
Even at the time of Roe in 1973, multiple states protected unborn children under laws governing injury and wrongful death, as well as fetal-homicide laws. In deciding Roe, the court either overlooked or ignored the depth of these precedents. Thus the justices left them standing with regard to most issues other than abortion.
Legal scholar Paul Benjamin Linton summarized the state of the law in 2011: “The most common approach, the one that has been adopted in more than one-half of the States, has been to make the killing of an unborn child a crime without regard to any arbitrary gestational age.” In other words, since Roe many states have incrementally deleted gestational markers, and have moved to protect the developing child from conception.
Today, several states protect unborn children in laws regarding legal guardianship and inheritance of property. Thirty-seven of them have criminal statutes that treat the killing of an unborn child as a homicide when done by means other than abortion. California’s statute protects unborn children after as few as eight weeks of gestation. Thirty states do so from conception.
Why speculate about “when life begins” when state law is so much more revealing about where the American people and their elected representatives stand in 2019?
Mr. Forsythe is senior counsel of Americans United for Life.
Original Article by Clarke D. Forsythe, lead counsel for Americans United for Life - AUL.
